The case summaries below contain main points used in defending yourself in a speeding ticket trial or on appeal.
Ohio Case Law Summaries (pre-June 2009):
1. Court of Appeals, 3rd District,
State of Ohio v. Harris, (2009-Ohio-2616) – 6/8/2009:
• Conviction was for speeding in general and not for the specific rate of speed detected by the radar.
• Trooper testified he was trained to use the radar unit and to visually estimate vehicle speeds.
• Trooper’s own observations of speed, as well as Harris’ own admission, provided a sufficient basis to find beyond a reasonable doubt that Harris was guilty of speeding, notwithstanding the results of the Python II radar.
2. Court of Appeals, 9th District,
City of Barberton v. Jenney, (2009-Ohio-1985) – 4/29/2009:
• “[B]ecause traffic citations need not be the product of grand jury action, they ‘should be amendable to cure defects more readily than felony indictments.’” State v. Dunlap, 9th Dist. No. 97CA006859, 1998 WL 332944 at *2 (June 24, 1998) (quoting City of Cleveland Heights v. Perryman, 8 Ohio App. 3d 443, 445 (1983)). The City “may amend a traffic ticket that omits necessary information or includes a clerical error as long as: (1) the original traffic ticket gave the defendant notice of the true nature of the offense; (2) the defendant was not deprived of a reasonable opportunity to prepare a defense; and (3) the amendment merely clarifies or amplifies the information in the original ticket.” Id. (citing Perryman, 8 Ohio App. 3d at 446).
• He did not, however, contest the scientific reliability of the Python device itself. Accordingly, he has forfeited his challenge to the dependability of the Python device…
• Although Officer Santimarino testified that he is certified to operate the device, he did not produce any evidence of that fact beyond his testimony. Testimony by a law enforcement officer that “he was trained on the radar unit” is insufficient to establish that he is qualified to operate it. Brown, 2002-Ohio-6463, at ¶12. “Absent further evidence, such as a certificate of training, [this Court] cannot say that the [City] demonstrated that [Officer Santimarino] was qualified to operate the radar unit.”
• This Court has held that a conviction may be based solely on an “officer’s testimony that he observed [a] defendant traveling in excess of the posted speed limit.” State v. Wilson, 9th Dist. No. 95CA006285, 1996 WL 668993 at *1 (Nov. 20, 1996) (citing City of Cincinnati v. Dowling, 36 Ohio App. 3d 198, 200 (1987); Village of Kirtland Hills v. Logan, 21 Ohio App. 3d 67, 69 (1984)).
3. Court of Appeals of Ohio, 12th District,
State of Ohio v. Gellenbeck, (2009-Ohio-1731) – 4/13/2009:
• Timeline for speedy trial extended by number of days requested by defendant’s continuance.
• An officer's visual estimation of speed is sufficient to support a speeding conviction, see State v. Kline, Warren App. No. CA2004-10-125, 2005-Ohio-4336, we find no error in the trial court's reliance on Trooper Wells' visual observation of appellant's speed.
• After reviewing the transcript of the bench trial, we find that appellant failed to specifically raise the issue of scientific reliability and accuracy of the Python radar. Because appellant failed to specifically raise the issue of scientific reliability and accuracy of the Python radar below, he has waived this issue on appeal. See State v. DeGrey, Warren App. No. CA2004-05-058, 2005-Ohio-5372.
4. Court of Appeals of Ohio, 8th District,
Dickinson and Campbell, L.L.C. v. City of Cleveland, (2009-Ohio-738) – 2/19/2009:
• Lessees are not held liable under the speed and red light camera laws of the City of Cleveland because the ordinance does not state Lessees, but Owners. The parking ticket ordinance for the City of Cleveland states lessees or owners whereas the speed camera ordinance does not include lessees like other cities in the State of Ohio. Lessees can still be held liable for speeding and running red lights by traditional means of a patrol officer.
5. Circleville Municipal Court of Ohio,
State of Ohio v. Caldwell, (150 Ohio Misc.2d 42, 2008-Ohio-7137) – 12/8/2008:
• The court finds that the K-55, the Python, the Python II, and the Python III radar speed detectors are an accurate and scientifically reliable measure of speed with a margin of error within minus two to plus two miles per hour in the moving mode and one to plus one miles per hour in the stationary mode of the actual speed of the object.
6. In the Municipal Court of Darke County, Ohio,
State of Ohio v. Carrington, (148 Ohio Misc.2d 3, 2008-Ohio-4878) – 8/28/2008:
• The court finds that the Python, Python II, and Python III radar speed detectors are an accurate and scientifically reliable measure of speed with a margin of error within minus two to plus two miles per hour of the actual speed of the object.
7. Court of Appeals of Ohio, 8th District,
City of Cleveland v. Tisdale, (2008-Ohio-2807) – 5/29/2008:
• We believe that expert testimony is no longer required to establish the general reliability of radar or laser devices that are used to determine speed. Sufficient evidence must still be presented concerning the accuracy of the particular speed meter involved and the qualifications of the person using it. In addition, where a moving device is involved, the prosecution also bears the burden of showing that the police officer independently verified the speed of the patrol vehicle, and that the radar was used in an area posing a minimal risk of misidentification or distortion.
• The Eighth Appellate District has repeatedly held “that the opinion of the officer that the defendant was speeding, based upon a visual estimation, without more, is insufficient to sustain a conviction by proof beyond a reasonable doubt.” Middleburg Heights v. Campbell, Cuyahoga App. No. 87593, 2006-Ohio-6582.
• As stated in State v. Palmer, Hamilton App. No. C-050750, 2006-Ohio-5456: “When defendants enter a ‘not guilty’ plea, they preserve their right to object to the sufficiency of the evidence. And a conviction based on insufficient evidence almost always amounts to plain error. Whether a sufficiency of the evidence argument is reviewed under a prejudicial error standard or under a plain error standard is academic, because regardless of the standard used, a conviction based on legally insufficient evidence constitutes a denial of due process.”
• No testimony that radar unit was calibrated, training of officer was not described or a certificate of training presented as evidence.
8. Court of Appeals of Ohio, 3rd District,
State of Ohio v. Yaun, (2008-Ohio-1902) – 4/21/2008:
• The court specifically noted that it had previously heard expert testimony on the Doppler effect radar, that it had subsequently taken judicial notice of the reliability and limitations of the Doppler effect radar, that Sergeant Bennett testified that the Python operates under the same Doppler radar and principle. It is the scientific principle underlying a device’s reliability—and not the reliability of specific model—that renders judicial notice proper. State v. Wiest, 1st Dist. No. C-070609, 2008-Ohio-1433, ¶ 12.
• Accordingly, as the Python radar device operates on the same Doppler effect principle as other radar devices, the trial court was not required to have previously heard expert testimony specifically on the Python. Therefore, the trial court did not err in taking judicial notice of the construction and reliability of the radar device used in the present case.
• Even though training certificate wasn’t presented as evidence, testimony concerning training for speed measuring devices and visually estimating speed was presented. Since a specific estimated speed was stated, the certificate is not required for device to be admissible.
9. Court of Appeals of Ohio, 1st District,
State of Ohio v. Wiest, (2008-Ohio-1433) – 3/28/2008:
• At trial, the court noted on the record that it had previously taken judicial notice of the scientific reliability of the LTI 20-20 laser device. It was proper since previous expert witness testimony was heard by that court.
• Trooper testified about his training to use the device and his calibration of the device before and after using it for the citation issued that day.
• Met court’s requirements of Cincinnati v. Levine and East Cleveland v. Ferell.
10. Court of Appeals of Ohio, 1st District,
City of Cincinnati v. McDaniel, (2008-Ohio-703) – 2/22/2008:
• Appeal is not moot because fine and court costs were paid since points are assessed against the appellants driving record creating a collateral disability as a result of the judgment. In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, syllabus.
• Court did not err in taking judicial notice of the K-55 Enforcer radar unit.
• The Ninth Appellate District considered and rejected a similar argument in State v. Bechtel.10 “[T]he weight of authority holds that when two tuning forks are used to ascertain the accuracy of the radar unit, additional proof of the accuracy of the tuning forks is not necessary.
• Officer’s testimony regarding training and experience using radar equipment satisfies the training requirement and does not require the prosecution to show his training certificate as proof.
11. Court of Appeals of Ohio, 3rd District,
State of Ohio v. Helke, 2007-Ohio-5483, Case No. 8-07-04) – 10/15/2007:
• Appeals Court will not consider evidence not presented to the trial court and is not part of the appellate record, even if attached to appellate brief. App.R.9(A).
• To prove a case of speeding based on the reading of a radar gun, the city is required to show the accuracy and reliability of the device; that the unit was in good condition for accurate work; and the operator’s qualifications by training and experience to use the device. State v. Kirkland (Mar. 2, 1998), 3d Dist. No. 8- 97-22, citing East Cleveland v. Ferell (1958), 168 Ohio St. 298, 303, 154 N.E.2d 630; State v. Wilcox (1974), 40 Ohio App.2d 380, 386, 319 N.E.2d 615.
• On the first prong of the test, this Court has held that expert testimony is not required to establish the reliability of a moving radar device. Kirkland. Instead, once a trial court has heard expert testimony on the issue, it may take judicial notice of the radar’s reliability in subsequent cases. Id., citing State v. Colby (1984), 14 Ohio App.3d 291, 470 N.E.2d 924; Moreland Hills v. Gazdak (1988), 49 Ohio App.3d 22, 550 N.E.2d 203; State v. Doles (1980), 70 Ohio App.2d 35, 38, 433 N.E.2d 1290; Wilcox, at 384. In this case, the trial court took judicial notice of the accuracy and reliability of the K-55 radar, indicating that it had previously heard expert testimony, which was subject to crossexamination, of the “underpinnings and the limitations of that radar.” (Trial Tr., May 14, 2007, at 20).
• Several appellate districts across the state have held that a failure to submit a certificate or a description of the radar operator’s training is insufficient to prove he or she was qualified to use it. Cleveland v. English, 8th Dist. No. 84945, 2005-Ohio-1662; New Middletown v. Yeager, 7th Dist. No. 03 MA 104, 2004-Ohio-1549; State v. Brown, 9th Dist. No. 02CA0034-M, 2002-Ohio-6463. Without more, Standley’s testimony concerning his qualifications is insufficient to uphold a conviction for speeding based solely on the reading of a K-55 radar device. Because the city did not show Standley’s qualifications and experience, any evidence concerning the radar device’s readout should have been excluded.
• However, we note that Standley also testified that prior to activating the radar gun, he observed Helke’s car traveling “well above the posted 25 mile per hour speed limit.” (Trial Tr., at 4). While some courts allow such evidence Case Number 8-07-04 alone to support a speeding conviction, this Court has held to the contrary. See State v. Westerbeck (Jun. 19, 1987), 3d Dist. No. 17-86-18 (officer’s testimony was “too vague and indefinite” to support speeding conviction after radar device readout had been excluded).
• Other appellate courts have affirmed speeding convictions where the readout from the radar device had been excluded, but even in those cases, the officer was required to opine how fast the offender’s vehicle was traveling and/or produce in depth testimony concerning the officer’s training and expertise. See State v. Napier (Jul. 30, 2001), 5th Dist. No. 2001CA00035; Kirtland Hills v. Logan, 21 Ohio App.3d 67, 486 N.E.2d 231. Even if we were to accept such propositions, in this case, the city failed to produce testimony concerning Standley’s experience, and Standley did not testify that he had ascertained Helke’s speed via any method other than through the radar readout.
12. Court of Appeals of Ohio, 1st District,
State of Ohio v. PALMER (Not reported; Slip copy, 2006 WL 2987715 [Ohio App. 1 Dist.]) - 10/20/2006:
• Defendant's claim that state failed to produce sufficient evidence would be reviewed even though defendant did not object at trial to improper foundation.
• State failed to lay foundation for laser device's reliability; state failed to introduce even the identity of laser device. R.C. 4511.21(D)(1). Court never took judicial notice of its reliability. Judgement reversed.
13. Court of Appeals of Ohio, 4th District,
State of Ohio v. Litreal, (170 Ohio App.3d 670, 2006-Ohio-5416) – 10/5/2006:
• Because we cannot conceive of an error that could more seriously affect the fairness, integrity, or public reputation of judicial proceedings than a court’s complete disregard of a criminal defendant’s right to present evidence in his defense, we agree and find that the court committed plain error by failing to give Litreal any opportunity to present evidence in his defense.
• This court has previously held that an officer’s testimony regarding his visual observation of speed is sufficient to support a conviction for speeding, and, therefore, where such eyewitness testimony exists, it is harmless error for a trial court to admit, without the proper foundation, the officer’s testimony that he had clocked the defendant’s speed with a radar gun. State v. Harkins (Aug. 5, 1987), Vinton App. No. 431. See, also, State v. Wilson (1995), 102 Ohio App.3d 1; Cincinnati v. Dowling (1987), 36 Ohio App.3d 198; Kirtland Hills v. Logan (1984), 21 Ohio App.3d 67.
14. Court of Appeals of Ohio, 8th District,
Village of Highland Hills v. English, (2006-Ohio-3728) – 7/20/2006:
• Court previously heard testimony concerning the Pro Series radar unit and accepted judicial notice of it.
• Officer’s testimony concerning training, correct operation of and calibration of unit was sufficient to sustain conviction.
15. Court of Appeals of Ohio, 8th District,
City of Cleveland v. Wilson, (2006-Ohio-1947) – 4/20/2006:
• “Ohio courts are split on whether a trained officer’s estimation of speed, with nothing more (e.g., laser or radar), is sufficient to support a prima facie speeding conviction.” State v. Kincaid, 124 Ohio Misc.2d 92, 95, 2003-Ohio-4632. In the Second, Third, and Eighth Districts, as well as Morrow County Municipal Court in the Fifth District, the opinion of the officer that the defendant was speeding, based upon a visual estimation, without more, is insufficient to sustain a conviction by proof beyond a reasonable doubt. See Id.; State v. Meyers (Dec. 9, 2000), Greene App. No. 2000 CA 49 [2d Dist.]; State v. Westerbeck (June 19, 1987), Shelby App. No. 17-86-18 [3d Dist.]; Broadview Hts. v. Abkemeier (1992), 83 Ohio App.3d 633 [8th Dist.].
• “The First, Fourth, Ninth, Tenth and Eleventh Districts have held that an officer’s estimation of speed is sufficient to sustain a speeding conviction in a prima facie case.” Kincaid, 124 Ohio Misc.2d at 95, citing Cincinnati v. Dowling (1987), 36 Ohio App.3d 198 [1st Dist.]; State v. Harkins (Aug. 5, 1987), Vinton App. No. 431 [4th Dist.]; State v. Wilson (Nov. 20, 1996), Lorain App. No. 95CA006285 [9th Dist.]; Columbus v. Bravi (Mar. 5, 1991), Franklin App. No. 90AP-1135 [10th Dist.]; Kirtland Hills v. Logan (1984), 21 Ohio App.3d 67 [11th Dist.]; State v. Jones (Nov. 8, 1991), Trumbell App. No. 91-T-4508 [11th Dist.].
• This court reaffirms its earlier position that the mere educated guess of the arresting officer as to the speed of a vehicle is insufficient to overcome the presumption of innocence and the burden of proof beyond a reasonable doubt for conviction.
16. Court of Appeals of Ohio, 3rd District,
Bowling Green v. Godwin, (110 Ohio St.3d 58, 2006-Ohio-3563) – 7/26/2006:
• A law-enforcement officer who personally observes a driver disregard a traffic control device that complies with the Ohio Manual of Uniform Traffic Control Devices may have probable cause under the totality of the circumstances to stop the driver, even though the device was not installed in compliance with a local ordinance requiring approval of city council for the installation of traffic-control devices.
17. Court of Appeals of Ohio, 8th District,
State of Ohio v. Bayus, (2006-Ohio-1684):
• The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence.
• “In essence, sufficiency is a test of adequacy[;] [w]hether the evidence is legally sufficient to sustain a verdict ***.” Thompkins, supra, at 386. Further, we note that the verdict will not be disturbed on appeal unless the reviewing court finds that reasonable minds could not have arrived at the conclusion reached by the trier of fact.
• We note first that that the trial court properly took “judicial notice that K-55 radar in moving mode is scientifically reliable in the detection of the speed of on-coming vehicles[,]” citing State v. Newman (1984), Chardon Municipal Court Case No. 84-TRD-695, as the case it had originally determined it to be so.
• The testimony of the officer who calibrated the radar device prior to its use is sufficient to demonstrate that a radar unit is properly calibrated. State v. Doles (1980), 70 Ohio App.2d 35, 39.
• Further, this court has held that the officer’s testimony with respect to his or her qualifications and experience, is sufficient to establish that he or she is qualified to use the radar device. State v. Schroeder (Sept. 8, 1995), 11th Dist. No. 95-G-1907, 1995 Ohio App. LEXIS 3910, at 4.
• Further, even if we were to conclude that the radar reading was not reliable, this court has held that a conviction for speeding will not be reversed on sufficiency grounds even if a radar reading was improperly admitted into evidence when an officer testified that, based upon his visual observation, the vehicle was speeding. Kirtland Hills v. Logan (1984), 21 Ohio App.3d 67, 69.
18. Court of Appeals of Ohio, 8th District,
Cleveland v. English, (2005-Ohio-1662) – 4/7/2005:
• Here, however, the City presented no evidence as to the type or make of the laser machine used to measure defendant’s speed. Accordingly, the trial court could not have taken judicial notice of its dependability and accuracy. See City of New Middletown v. Yeager, Mahoning App. No. 03 MA 104, 2004-Ohio-1549 (an unknown and unspecified radar device could not be used as evidence of speeding). See, also, City of Cincinnati v. Levine (2004), 158 Ohio App.3d 657, 2004-Ohio-5992 (the trial court could not take judicial notice of a LTI 20-20 as an accepted speed-measuring device where it had never received expert evidence on such a device); State v. Kincaid (2003), 124 Ohio Misc.2d 92, 99 (the trial court could not take judicial notice of a Marksman 20/20 as an accepted speed-measuring device where it had not previously approved such a device); State v. Saphire (Dec. 8, 2000), Greene App. No. 2000 CA 39 (the trial court could not take judicial notice of a LTI 2020 as an accepted speed-measuring device where it had never received expert evidence on such a device.)
• In light of the fact that the type, kind, or model of the laser device used to measure defendant’s speed was never identified, we do not find that the City sufficiently proved that Officer Grooms was qualified to operate the specific laser unit used in this case. Accordingly, the laser device’s reading as to defendant’s speed cannot be used as evidence that defendant was speeding.
• The only remaining evidence is Officer Grooms’ testimony that he saw the defendant “passing” other cars. This Court has previously held that the opinion of an officer that a defendant was speeding, based upon a visual estimation and nothing more, is insufficient to sustain a conviction by proof beyond a reasonable doubt. See Broadview Hts. v. Abkemeier (1992), 83 Ohio App.3d 633, 636.
19. Court of Appeals of Ohio, 12th District,
State of Ohio v. Kline, (2005-Ohio-4336) – 8/22/2005:
• The record shows that while appellant objected to the trooper's laser testimony with regard to the accuracy of the laser, he never objected to the speed readings from the laser. Appellant also did not object to the testimony regarding the accuracy of the laser until after the trooper had already testified about the readings. Appellant also never moved to strike the trooper's testimony regarding the readings following their introduction. As a result, pursuant to Evid.R. 103(A), any error in the admission of the speed readings was waived.
• Furthermore, the admission of the speed readings does not constitute plain error as defined in Crim.R. 52(B). Trooper Williams testified that from her visual observation, appellant's car was going over the speed limit. See State v. Wilson (1995), 102 Ohio App.3d 1 (conviction for speeding will not be reversed on sufficient grounds even if the radar reading was improperly admitted into evidence when the officer testified that, based upon his visual observation, the vehicle was speeding).
20. Court of Appeals of Ohio, 1st District,
City of Cincinnati v. LEVINE (158 Ohio App.3d 657, 821 N.E.2d 613) – 11/12/2004:
• Trial court should not have taken judicial notice of accuracy and dependability of laser device.
• Evidence was insufficient to sustain conviction for speeding.
• Establishing the reliability of a speed-measuring device for purposes of establishing a speeding violation can be accomplished for future cases by: (1) a reported municipal court decision, (2) a reported or unreported case from the appellate court, or (3) the previous consideration of expert testimony about a specific device where the trial court notes it on the record.
• A motion for acquittal may be granted if the evidence is insufficient to sustain a conviction on the offense charged.
• The only admissible testimony that remained here was Gober's statement that Levine “appeared to be going faster than another car was not alone a violation of Cincinnati Municipal Code 506-8; Gober's testimony was insufficient to sustain a conviction.
21. Court of Appeals of Ohio, 7th District,
City of New Middleton v. YEAGER (Not reported in N.E.2d, 2004 WL 614868 [Ohio App. 7 Dist.]) - 3/17/2004
• Evidence was insufficient to support conviction. Record was devoid of evidence that trial court took judicial notice of reliability of radar machine, scientific evidence of machine's reliability was not provided, type of radar machine used was not identified, record was devoid of any evidence that officer was trained and qualified to administer radar machine, and record was devoid of any other evidence that defendant was speeding.
• Unspecified radar device could not be used as evidence of defendant's speed.
• Radar device's reading as to defendant's speed was not admissible absent evidence officer was trained and qualified to administer radar device.
• Failure to object to testimony regarding radar device results did not waive appeal arguments as to whether radar device was properly working and whether administer was qualified to use it.
22. County Court of Morrow,
State of Ohio v. KINCAID (124 Ohio Misc.2d 92, 796 N.E.2d 89) - 8/5/2003:
• Use of laser speed-measuring device was proper.
• Court could not take judicial notice of a specific laser speed-measuring device used by police officer in defendant's arrest, and officer's testimony regarding laser readout from device was therefore inadmissible.
• Opinion of court accepting expert testimony concerning speed-measuring device need not be reported in order for opinion to be subject to judicial notice.
• Mere educated guess of arresting officer as to speed of defendant's vehicle, without more, was insufficient to support conviction for speeding.
• This court therefore holds that expert testimony is necessary for each device, whether it be a new device or an upgrade of an existing device, before the court may take judicial notice of that particular device in future proceedings. Further, in those proceedings, the state must demonstrate, with sufficient particularity, that the device at issue is the same device that was the subject of previous expert testimony.
23. Court of Appeals, 9th District,
State of Ohio v. Brown, (2002-Ohio-6463) – 11/27/2002:
• We note that the State did not file an appellate brief. Therefore, we may accept the facts and issues as stated in Defendant’s appellate brief as correct and reverse the judgment if Defendant’s brief reasonably appears to sustain such action.
• We find that Defendant did not enter an objection to the trial court’s decision to take judicial notice of the reliability of the radar unit during the trial. Therefore, as Defendant has waived his challenge on appeal, we find Deputy Locher’s testimony relating to his use of the radar unit is not inadmissible on this basis.
• Specifically, the only evidence presented as to the qualifications of Deputy Locher was the fact that he was trained on the radar unit on two separate occasions. Absent further evidence, such as a certificate of training, we cannot say that the State demonstrated that Deputy Locher was qualified to operate the radar unit. Consequently, we find that the trial court did abuse its discretion by permitting the State to introduce Deputy Locher’s testimony as it related to his use of the radar unit.
• Allowed evidence of visual estimation of speed that defendant was going over 55mph due to officer’s testimony concerning training.
• Affirmed decision of trial court for conviction of speeding (going over 55mph).
24. Court of Appeals, 8th District,
Cleveland Heights v. Katz, 2001-Ohio-4241 – 12/6/2001:
• City was not required to prove that the equipment used to calibrate Officer Roach’s radar unit was itself properly calibrated. Rather, Officer Roach’s testimony regarding appellant’s speed as determined by the radar unit was admissible if the City demonstrated that the radar device was in good operating condition and properly calibrated at the time of use, the operator of the device was properly trained and qualified to use it and did, in fact, properly operate the radar device.
• Quoted 9th District Court of Appeals: the weight of the authority holds that when two tuning forks are used to ascertain the accuracy of the radar unit, additional proof of the accuracy of the tuning forks is not necessary.
25. Court of Appeals, 3rd District,
State of Ohio v. Henning (1999-Ohio-820, Case No. 13-99-04) – 6/29/1999:
• Tyson performed the required tuning fork test in an improper method contrary to the manufacturer's instructions. The manual states that the tuning fork should be struck on wood or plastic and the trooper struck it on a metal surface. The court found that this variance was not sufficient to render the calibration check inadequate. We agree. There is no explanation as to why that statement is made or any indication that it is mandatory.
• Appellant has presented no evidence or case law to demonstrate that the failure to strike the tuning fork on a wooden or plastic surface would do anything more than add a longer life to the tuning fork.
• Accepted officer’s opinion of appellant’s speeding (going over the speed limit without specifying an estimated speed).
26. Court of Appeals, 2nd District,
State of Ohio v. FREEMAN (24 Ohio Misc.2d 7, 493 N.E.2d. 571) - 9/3/1985:
• Reliability of radar speed detection device could be attacked by properly qualified witness; that testimony was relevant and went to proper weight to be given to radar device.
• Judicial notice of accuracy or dependability of a specific radar device could not be taken where trial court had never in any case previously before it received expert evidence and determined that the device was dependable and accurate, and issue had not been passed upon by appellate court.
• The legislature had not established any statutory guidelines for the operation of radar devices nor has it set up a system for developing administrative regulations governing and controlling the proper use and operation of such devices. Finally, the legislature has not designated a person in any department, or agency, to be charged with the responsibility of determining which, among the many radar devices on the market, are suitable for determining the speed of vehicles. Significantly, the General Assembly has not legislatively provided for the admission of the results obtained from radar devices in speeding cases.
27. Court of Appeals of Ohio, 11th District,
Village of Kirkland Hills v. LOGAN (21 Ohio App.3d 67, 486 N.E.2d 231) - 12/3/1984:
• Trial court erred in admitting police officer's testimony, without proper foundation, that he had “clocked” speed of defendant's vehicle with moving radar unit not the subject of judicial notice, but error was harmless.
• Judicial notice taken of moving radar device did not automatically extend to all models of moving radar.
28. Court of Appeals of Ohio, 3rd District,
State of Ohio v. COLBY (14 Ohio App.3d 291, 470 N.E.2d 924) - 2/17/1984:
• Trial court could not take judicial notice of accuracy and dependability of radar speed-measuring device which allegedly indicated the defendant was driving at speed of 65 mph in a 55 mph zone absent expert testimony on dependability or accuracy of device or any indication in record that trial court had ever previously received expert evidence on and determined that device was dependable and accurate.
• Where there was no testimony as to the construction and method of operation of a speed-measuring device not the subject of judicial notice, testimony of officer who used device, standing alone, was insufficient to sustain conviction of speeding.
29. Court of Appeals of Ohio, 10th District,
State of Ohio v. DOLES (70 Ohio App.2d 35, 433 N.E.2d 1290) – 9/4/1980:
• In absence of expert testimony in any case within jurisdiction of trial court as to construction of radar unit and its method of operation with respect to its ability to differentiate speed of vehicle approaching moving patrol car from opposite direction from combined speed at which they were moving toward each other, it was improper for trial court to take judicial notice of dependability of radar unit.
• Testimony of state patrolman concerning use of internal calibration as well as use of tuning forks supplied by manufacturer would have been sufficient to establish that radar unit was functioning properly on date of arrest if dependability of radar unit had also been established.
30. Court of Appeals of Ohio, 10th District,
State of Ohio v. WILCOX (40 Ohio App.2d 380, 319 N.E.2d 615) – 5/14/1974:
• Evidence of speed reading obtained by a radar speed meter using the Doppler principle, without independent expert witness testimony as to the nature and function of, or the scientific principles underlying, the speed meter, is admissible.
• A defendant may not be convicted of speeding solely upon evidence obtained from a radar speed meter device mounted in a patrol car moving toward defendant's automobile, in the absence of expert testimony with respect to the construction of the device and its method of operation with respect to its ability to differentiate the speed of a vehicle approaching the moving patrol car from the combined speed at which the automobiles are moving toward each other.
• Evidence that the device is in good condition for accurate work.
• Evidence the witness using the device is one qualified for its use by training and experience.
31. Court of Appeals of Ohio, 7th District,
State of Ohio v. BONAR (40 Ohio App.2d 360, 319 N.E.2d 388) – 11/20/1973:
• Where sole evidence as to speeding was reading secured by use of radar-type speedometer, it was obligation of prosecution to establish prima facie that radar-type speedometer was accurate and functioning properly at time accused's speed was checked, and failure of such proof caused an insufficiency of evidence to support conviction.
• No evidence introduced as to defendant's speed and no testimony as to whether the radar measuring equipment was properly installed, set up, or operating correctly.
32. Court of Appeals of Ohio, 10th District,
State of Ohio v. WALL (115 Ohio App. 323, 185 N.E.2d 115) – 3/13/1962:
• In every charge of violation of this section the affidavit and warrant shall specify the time, place, and the speed at which the defendant is alleged to have driven.
• The speeding statute does not establish the commission of an offense or constitute unlawful conduct per se, but establishes only a prima facie case and is merely a rule of evidence raising a rebuttable presumption which may be overcome by evidence showing that in the circumstances, the speed was neither excessive nor unreasonable. R.C. 4511.21.
• A “prima facie case” is one in which the evidence is sufficient to support but not compel a certain conclusion and does no more than furnish evidence to be considered and weighed but not necessarily to be accepted by the trier.
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